Presidential election, certificate and server brouhaha

I was in Nsukka Judicial Division of Enugu State High Court to defend a case on behalf of my clients, as a lawyer, earlier this year. As we were waiting for the judge to enter, an argument arose as to the chances of His Excellency, Atiku Abubakar, successfully challenging the election victory of President Muhammadu Buhari in the 2019 presidential election. Most of the lawyers were of the view that any action by him will fail having regards to our extant electoral laws. However, a lawyer said something very instructive. In his words, “whoever that discourages Atiku Abubakar from going to court on this matter hates lawyers”.

Another senior lawyer educated us in one of the NBA conferences I attended that lawyers take legitimately from clients what they take illegitimately from others. The quest of some lawyers to make money from their clients irrespective of the weakness of their cases has made them to restrain from giving their clients sound legal advice as to the relative strength and weaknesses of their cases. In FCT, this situation grew to an unacceptable level that necessitated the Chief Judge of the FCT to make a rule that every civil suit must be accompanied with a pre-action counselling certificate which compels every lawyer to undertake to indemnify any client whom they advised to go to court where they reasonably know or should know that the action is frivolous.

The petitioners in the 2019 Presidential Election Petition No: CA / PEPC / 002 / 2019 are Atiku Abubakar and the Peoples Democratic Party (PDP). The winner, whose election is challenged is called the respondent. In this case, he is President Muhammadu Buhari.

Let us admit first and foremost that it is nearly impossible, having regards to our existing laws, to prove that a democratically elected president in Nigeria was not duly elected by majority of lawful votes cast at the election or that the election was invalid by reason of corrupt practices or by reason of non-compliance with the Electoral Act, 2010 as amended, the Electoral Guidelines 2019 and manuals issued for the conduct of elections by Independent National Electoral Commission (INEC). This is because the onus of proof lies on the petitioners and they are required to prove criminal allegations beyond every reasonable doubt. There are more than 120, 000 (One hundred and twenty thousand) polling units in the country and the petitioners are expected to prove every infraction of the law, polling unit by polling unit, within about 15 days allocated to them. The whole process of the petition is expected to be completed within 180 days.

To compound the problem of the petitioners, an election shall not be liable to be invalidated by reason of non-compliance with the provisions of the Electoral Act if it appears to the election tribunal or court that the election was conducted substantially in accordance with the principles of the Act and that the non-compliance did not affect substantially the result of the election. SEE SECTION 139 (1) OF THE ELECTORAL ACT 2010 AS AMENDED. This means that even if a petitioner proves that there were non-compliance with the provisions of the Act in some polling units, he will still not succeed, except he proves that the non-compliance was such that it will change the result of the election to his favour.

Another serious inhibition on the way of the petitioner is that an act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election, but which is not contrary to the provisions of the Electoral Act shall not of itself be a ground for questioning the election. SEE SECTION 138(2) OF THE ELECTORAL ACT 2010 AS AMENDED. This means that a petition will fail if the petitioner hinges his action of seeking electoral redress on the guidelines of INEC for the conduct of the election which does not at the same time contradict the provisions of the Act. This effectively renders INEC’s guidelines and manuals impotent in the determination of electoral cases.

This was why the Court of Appeal, which is the tribunal of first instance, in the determination of presidential election petition described PDP’s efforts to nullify the election on the basis that the president was not duly elected by majority of lawful votes cast at the election or that the election was invalid by reason of corrupt practices or by reason of non-compliance with the Electoral Act, 2010 as amended, the Electoral Guidelines 2019 and Manuals issued for the conduct of elections by Independent National Electoral Commission (INEC) as a mere drop in the ocean and consequently reconciled the issues for determination in favour of the respondent.

The only hope the petitioners had was hinged on the purported non-qualification of the president for the election and their ill-fated idea of the existence of an INEC server which was purportedly used for the electronic transmission of election results.

On the issue of transmitting results electronically through the instrumentality of a server, it was held that there was no statutory provision for it. Indeed Sections 52 (2) and 73 OF THE ELECTORAL ACT 2010 AS AMENDED prohibit it. So PDP was actually asking the court to use its inherent powers to make an order that deliberately contradicts the specific provisions of the law. It is settled law by the Supreme Court that the court has no jurisdiction to do that, so the issue was bound to fail and it indeed failed. SEE NALSA & TEAM ASSOCIATES  V.  NNPC (1991) 8 NWLR (PT. 212) 652 AT 683 PARA D.

The issue of academic qualification is even more ridiculous. By the combined effects of Sections 131(d) and 318(1) of the 1999 Constitution as amended, the academic requirement to contest the presidential election is a secondary school certificate or its equivalent, education up to secondary school level or primary six school leaving certificate or its equivalent coupled with 10 years service in the public or private sector, at least one year attendance at courses and training in institutions acceptable to the INEC, ability to read, write, understand and communicate in English Language and any other qualification acceptable to INEC.

With the presentation of evidence that the president attended Provincial Secondary School, Katsina and finished in 1961, the issue of his academic qualification was put to rest. Yet the petitioners want the court to disqualify the president on the excuse that the president purportedly provided false information that his certificates were with the army on his verifying affidavit and failed to attach his certificates.

By virtue of Section 31(2) OF THE ELECTORAL ACT 2010 AS AMENDED, what is required is simply a deposition that you have fulfilled the constitutional requirements for qualification to contest for the office of the president. By virtue of this section, submission of information about qualification without attaching certificates is sufficient. Any provision in the guidelines that requires attachment of certificates cannot be a ground to challenge the results of the election by virtue of SECTION 138(2) OF THE ELECTORAL ACT 2010 AS AMENDED.

To prove that a candidate submitted false information requires that you prove that he intends to use the false information to get himself qualified, where otherwise he would have been unqualified. The argument, therefore, by the petitioners that the president should be disqualified because he said his certificates are with the army is laughable. A look at section 31(5) OF THE ELECTORAL ACT 2010 AS AMENDED will reveal that the false information or document mentioned refers to presenting forged certificates or false information as to the qualifications of the candidate. It does not accommodate the making of mistakes (if any) as to where certificates are. This is why it is said that the false information must be of a fundamental nature that aided the qualification of the candidate. The petition, therefore, was an attempt to use the instrumentality of the court to disqualify a candidate who, constitutionally, is qualified. The court unanimously held that the president was eminently qualified to contest and consequently dismissed the petition in its entirety.

The lawyers of the petitioners immediately said they will appeal to the Supreme Court. I will not advise them not to do so because I don’t want to be accused of hating lawyers, but they should search their conscience on whether they believe that they stand any chance of winning the case or they want to take legitimately from a client  what the client may have taken illegitimately from others. Robert Clarke, SAN, a respected senior attorney, is of the view that there is nothing about the judgement that will require appealing against. He believes that the quest for appeal of such an impeccable judgement amounts to inordinate extortion of the petitioner by his lawyers.

The petitioner should also ask himself, why is it that the presidential and national assembly elections were held on the same day, but it is only the presidential election that some clowns are posing to have access to an imaginary electronic server. Could it be that they knew that it is only the presidential candidate of PDP that will dole out money in billions without questioning?